Criminal Defense of Immigrants

(B)  History.  Prior to 1970, federal courts regarded the appointment of an interpreter in a federal criminal proceeding as a question of discretion.[130]  In 1970, the Second Circuit held in the seminal case, United States ex rel. Negron v. New York, that a court must inform a non-English speaking defendant of his or her right to simultaneous interpretation of proceedings at the government’s expense.[131] This case was followed by others, recognizing that a non-English-speaking defendant has a constitutional right to an interpreter.[132]  The courts have based this right on the due process right to a fair trial,[133] but courts have increasingly found other constitutional rights to be involved.[134]

[130] See, e.g., Perovich v. United States, 205 U.S. 86, 91(1907); United States v. Desist, 384 F.2d 889, 901 (2d Cir. 1967), aff’d, 394 U.S. 244 (1969). Even after Fed. R. Cnm. P. 28(b) was enacted in 1966, providing for the appointment and compensation of interpreters in criminal proceedings in the federal courts, courts still considered such an appointment to be a matter of discretion. See, e.g., Desist, 384 F.2d at 901. As amended in 1972, Rule 28(b) provides as follows: “The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. Such compensation shall be paid out of funds provided by law or by the government, as the court may direct.”

[131] See United States ex rel. Negron v. State of New York, 434 F.2d 386, 390-91 (2d Cir. 1970).

[132] See United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 1994); United States v. Gallegos-Torres, 841 F.2d 240, 242 (8th Cir. 1988); United States v. Cirrincione, 780 F.2d 620, 634 (7th Cir. 1985); United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973) (per curiam); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992) (accepting Ninth Circuit holding that inadequate interpretation can make plea of guilty involuntary).

[133] See United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990); Gallegos­-Torres, 841 F.2d at 242; Cirrincione, 780 F.2d at 634; Luna v. Black, 772 F.2d 448, 451 (8th Cir. 1985) (per curiam); Negron, 434 F.2d at 389; see also Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989) (subjecting Fifth and Sixth Amendment claims to “fundamentally unfair” standard).

[134] See Mayans, 17 F.3d at 1181 (holding that denial of interpreter violated defendant’s Fifth Amendment right to testify in his own behalf); Carrion, 488 F.2d at 14 (recognizing importance of interpreter to rights to testify and to confront witnesses); Negron, 434 F.2d at 389-90 (noting violation of right to confront witnesses in addition to violation of due process).